1. Applicant's Name: a. Application Date: 7 March 2017 b. Date Received: 13 March 2017 c. Counsel: None 2. REQUEST, ISSUES, BOARD TYPE, AND DECISION: The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant seeks relief contending, in effect, his discharge was improper, because: The Administrative Separation Board violated law and regulations by being composed of officers who were biased, including the president of the board, contrary to the requirements of AR 635-200. The president of the board was incapable of exercising his duties according to the requirements of governing regulations because he abused his discretion because of his bias, and he unduly influenced and undermined the ability of the junior members of the Board to act without bias in making their decision. The Board did not decide on a characterization of service that accurately reflected the nature of service he performed, based on the overall period of service and not on any isolated actions, as required by AR 635-200. His characterization of service upon his discharge was not equitable at the time it was determined, because it was inconsistent with standards of discipline in the Army. His characterization of service upon his discharge is not equitable, based on the overall quality of his service, his capability to serve, and the circumstances of his misconduct. Since his discharge from the military, he has done his best to excel in pursuit of his higher education and accomplishments in a civilian occupation. He has attended courses of post- secondary education, wherein he takes over 18 units per semester, and has a grade point average above 3.0. He holds a part-time job and is raising a family while continuing his studies. His educational advisors have recommended that the applicant apply for one of the Fellowship programs administered by the university. It is his understanding that he cannot compete or be selected for this prestigious program, if his military record contains the discharge with the under other than honorable conditions characterization of service. Accordingly, he requests an upgrade to facilitate his future success, because without an upgrade he will be unfairly prevented from achieving higher levels of success in his civilian career. Per the Board's Medical Officer, based on the information available for review at the time to include the military electronic medical record, the applicant did not have a mitigating medical or behavioral health condition for the offenses which led to his separation from the Army; however, he had family/marital stressors that likely impacted his decision making. SMs electronic military medical records indicated diagnoses of an Adjustment Disorder, Anxiety, Cognitive Disorder, Insomnia, TBI, and PTSD. Treatment consisted of psychotherapy and medication management. Medical note dated 21 December 2009 indicated SM had a history 2 deployments and several experiences with IED blasts, to include a incident in which he experienced LOC and was medically evacuated and hospitalized for one month. SM received behavioral health counseling in theaters for symptoms related to nightmares due to having witnessed burning bodies. In March 2010 SM started cognitive processing therapy for PTSD symptoms, most notably anger and irritability. Medical noted 10 July 2012 indicated SM present to the mental health clinic for risk assessment following an incident over the weekend in which SM reported attending a unit party where there was an altercation between 2 colleagues and that due to his presence at the part, he was detained in a locked office for 8 hours to be questions. While in the office he used a compute chord to make a noose and hung it from the door. He later denied having ever placed the chord around his neck and reported it was a cry for help to let anyone who entered the office know he was not ok to remain in the locked room alone. At the time of evaluation, SM denied SI/HI. He reported feeling highly anxious due to uncertainty about punishment. He did call his wife, who came to the office to offer support. Alcohol behaviors were reported to be heavy one time per month in which he binge drank until passing out. Mental Status Evaluation 16 July 2013 indicated he was psychiatrically cleared for administrative action. In summary, SM does have a history of behavioral health conditions; however, they are not mitigating for the misconduct which led to his early separation. SM does have a 90% service connected rating for PTSD from the VA. In a personal appearance hearing conducted at Arlington, VA on 23 April 2018, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post-service accomplishments, combat valor, combat wounded, a prior period of honorable service and the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBH and PTSD), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. (Board member names available upon request) 3. DISCHARGE DETAILS: a. Reason / Authority / Codes / Characterization: Misconduct (Serious Offense) / AR 635-200 / Chapter 14-12c / JKQ / RE-3 / Under Other Than Honorable Conditions b. Date of Discharge: 21 April 2014 c. Separation Facts: (1) Date of Notification of Intent to Separate: NIF (2) Basis for Separation: NIF (3) Recommended Characterization: NIF (4) Legal Consultation Date: NIF (5) Administrative Separation Board: On 13 February 2014, the administrative separation board convened and the applicant appeared with counsel. The board recommended the applicant's discharge with a characterization of service of Under Other Than Honorable Conditions. (6) Separation Decision Date / Characterization: NIF 4. SERVICE DETAILS: a. Date / Period of Enlistment: 12 April 2011 / NIF b. Age at Enlistment / Education / GT Score: 26 / HS Graduate / 125 c. Highest Grade Achieved / MOS / Total Service: E-6 / 11B30, Infantryman / 9 years, 7 months, 7 days d. Prior Service / Characterizations: RA, (15 September 2004 - 2 June 2006) / HD RA, (3 June 2006 - 16 November 2009 / HD RA, (17 November 2009 - 11 April 2011 / HD e. Overseas Service / Combat Service: Germany, SWA / Afghanistan (26 January 2009 - 17 September 2009) / Iraq (13 January 2006 - 12 February 2007) f. Awards and Decorations: ACM-CS, ISM-2CS, BSM-V, PH-2, ARCOM-5, AAM-5, USNUC, ASUA, AGCM-2, NDSM, GWOTSM, COPDR-2, ASR, OSR-3, NATOMDL, CIB g. Performance Ratings: 15 October 2010 - 2 June 2011 / Among The Best 3 June 2011 - 2 June 2012 / Among The Best ....3 June 2012 - 29 May 2013 / Marginal h. Disciplinary Action(s) / Evidentiary Record: General Officer Memorandum Of Reprimand, dated 21 March 2013, for planning and participating in a party for subjects of the recruiting effort on the night of 6 July 2012, at another recruiters home. He supplied alcohol to these individuals, many of whom were underage. He drove several of these individuals to this party in his own vehicle. Additionally, he admitted to exchanging suggestive text messages with a 16 year old female. His actions were in violation of USAREC Regulation 600-25 and Article 92, UCMJ. FG Article 15, dated 29 May 2013, for having an unauthorized relationship with FS C A, prospect D G, FS J G, FS B G, FS W E, FS J L, prospect J L, prospect E P and FS Y Y, by engaging in unofficial, personal contact such as socializing and consuming alcoholic beverages (6 July 2012); for wrongfully allowing individuals under the state drinking age to consume alcoholic beverages (6 July 2012); and, for having an unauthorized relationship with T K, a prospect, by exchanging text of personal and or sexual nature (1 May and 19 July 2012). Administrative Separation Board findings and recommendations, dated 13 February 2014, reflects that the board found that a preponderance of the evidence established that the applicant: Did commit serious misconduct in violation of Article 92, UCMJ. In that the applicant, did on or about 6 July 2012, violate a lawful general regulation, to wit: para 2-1a (1), USAREC Regulation 600-25, dated 4 February 2009, by wrongfully having an unauthorized relationship with FS C A, prospect De G, FS J G, FS B G, FS Q E, FS J L, prospect J L, prospect E P, and FS Y Y, to wit: engaging in unofficial, personal contact such as socializing and consuming alcoholic beverages. Did commit serious misconduct in violation of Article 92, UCMJ. In that the applicant, did on or about 6 July 2012; violate a lawful general regulation, to wit: para 2-5a(8), USAREC Regulation 600-25, dated 4 February 2009, by wrongfully allowing individuals under the state drinking age to consume alcoholic beverages. Did commit serious misconduct in violation of Article 92, UCMJ. In that the applicant, did, between, on or about 1 May 2012 and 9 July 2012, violate a lawful general regulation, to wit: para 2-1a(1), USAREC Regulation 600-25, dated 4 February 2009, by wrongfully having an unauthorized relationship with T K, a prospect, to wit: exchanging text messages of a personal and/or sexual nature. This is in violation of Article 92, UCMJ. The findings did warrant separation with respect to commission of a serious offense under the provisions of Chapter 14-12c, AR 635-200. The characterization of service: Under Other Than Honorable Conditions. Investigation Findings and Recommendations (memo), dated 18 July 2012, reflects after investigating the allegations of the applicant, it was the investigating officer's belief, based on the preponderance of evidence, that the applicant was in violation of USAREC Regulation 600- 25 in the following areas that are punishable under Article 92 Uniform Code of Military Justice: Chapter 2-1a(1)(a) - Romantic Sexual Conduct. Chapter 2-1a(1)(b) - Sharing of lodging or personal vehicle. Chapter 2-1a(1)(c) - Drinking of alcoholic beverages. Chapter 2-1a(1)(d) - Unofficial personal contact such as entertaining, dining, recreation, dating, or other intimacy. Chapter 2-1a(1)(e) - Entry of any subject of a recruiting effort into the dwelling place of any recruiter. Chapter 2-2c - Creates an actual or clearly predictable adverse impact on discipline, authority, or morale. Chapter 2-5a(7) - The use of alcoholic beverages as a recruiting incentive. Chapter 2-5a(8) - Allowing any individual under the state drinking age to consume alcoholic beverages. i. Lost Time / Mode of Return: None j. Diagnosed PTSD / TBI / Behavioral Health: Adult Preventative and Chronic Care Flowsheet, reflects the applicant had been treated for the following chronic illnesses: Anxiety Disorder, NOS Adjustment Disorder Cognitive Disorder Post-Traumatic Headache Post-Traumatic Insomnia Post-concussion Syndrome 5. APPLICANT-PROVIDED EVIDENCE: DD Form 293, with all allied documents listed in block 8 and 14 of the application. 6. POST SERVICE ACCOMPLISHMENTS: The applicant states, he has done his best to excel in pursuit of his higher education. He has attended courses of post-secondary education, wherein he takes over 18 units per semester, and has a grade point average above 3.0. He holds a part-time job and is raising a family while continuing his studies. His educational advisors have recommended that the applicant apply for one of the Fellowship programs administered by the university. 7. REGULATORY CITATION(S): Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities and desertion or being absent without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impractical or unlikely to succeed. Army policy states that an under other than honorable conditions discharge is normally considered appropriate; however, a general (under honorable conditions) or an honorable discharge may be granted. Paragraph 14-12c states a Soldier is subject to action per this section for commission of a serious military or civilian offense, if the specific circumstances of the offense warrant separation and a punitive discharge is, or would be, authorized for the same or a closely related offense under the Manual for Courts-Martial. National Defense Authorization Act 2017 provided specific guidance to the Military Boards for Correction of Military/Naval Records and Discharge Review Boards when considering discharge upgrade requests by Veterans claiming Post Traumatic Stress Disorder (PTSD) or Traumatic Brain Injury (TBI) in connection with combat or sexual assault or sexual harassment as a basis for discharge review. Further, it provided that Boards will include, as a voting board member, a physician trained in mental health disorders, a clinical psychologist, or a psychiatrist when the discharge upgrade claim asserts a mental health condition, including PTSD; TBI; as a basis for the discharge. In August 2017, the Office of the Under Secretary of Defense for Personnel and Readiness provided further clarifying guidance to the Military Discharge Review Boards and Boards for Correction of Military/Naval Records when considering requests by Veterans for modification of their discharge due to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Liberal consideration will be given to Veterans petitioning for discharge relief when the application for relief is based in whole or in part on matters relating to mental health conditions, including PTSD; TBI; sexual assault; or sexual harassment. Special consideration will be given to Department of Veterans Affairs (VA) determinations that document a mental health condition, including PTSD; TBI; or sexual assault/harassment potentially contributed to the circumstances resulting in a less than honorable discharge characterization. Special consideration will also be given in cases where a civilian provider confers diagnoses of a mental health condition, including PTSD; TBI; or sexual assault/harassment if the case records contain narratives supporting symptomatology at the time of service or when any other evidence which may reasonably indicate that a mental health condition, including PTSD; TBI; or sexual assault/harassment existed at the time of discharge might have mitigated the misconduct that caused a discharge of lesser characterization. Conditions documented in the service record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which a mental health condition, including PTSD; TBI; or sexual assault/harassment may be reasonably determined to have existed at the time of discharge, those conditions will be considered potential mitigating factors in the misconduct that caused the characterization of service in question. All Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a less than Honorable characterization of service. Potentially mitigating evidence of the existence of undiagnosed combat related PTSD, PTSD-related conditions due to TBI or sexual assault/harassment as causative factors in the misconduct resulting in discharge will be carefully weighed against the severity of the misconduct. PTSD is not a likely cause of premeditated misconduct. Caution shall be exercised in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causal relationship of symptoms to the misconduct. 8. DISCUSSION OF FACT(S): The applicant requests an upgrade of his under other than honorable conditions discharge to honorable. The applicant's available, record of service, the issues and documents submitted with his application were carefully reviewed. The applicant's record is void of the specific facts and circumstances concerning the events which led to his discharge from the Army. However, the applicant's record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty), which was authenticated by the applicant's signature. The DD Form 214 indicates the applicant was discharged under the provisions of AR 635-200, Chapter 14, paragraph 14-12c, by reason of Misconduct (Serious Offense), with a characterization of service of Under Other Than Honorable Conditions. Barring evidence to the contrary, it appears that all requirements of law and regulation were met and the rights of the applicant would have been protected throughout the separation process. The applicant's contentions about there being bias against him during his administrative separation board, was carefully considered. However, there is insufficient evidence available in the official record to make a determination upon the applicant's quality of service. Moreover, there is a presumption of regularity in the conduct of governmental affairs which is applied in all Army discharge reviews unless there is substantial credible evidence to rebut the presumption. There is no evidence in the record, nor has the applicant produced any evidence, to support a change to the characterization of service granted. The applicant's statements alone do not overcome the presumption of government regularity and the application contains no documentation or further evidence in support of this request for an upgrade of the discharge. Further, the record does not contain any indication or evidence of arbitrary or capricious actions by the command and all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The character of the applicant's discharge is commensurate with his overall service record. The applicant contends the event that caused his discharge from the Army was an isolated incident. Although a single incident, the discrediting entry constituted a departure from the standards of conduct expected of Soldiers in the Army. Army Regulation 635-200, in pertinent part, stipulates there are circumstances in which the conduct or performance of duty reflected by a single incident provides the basis for a characterization. The applicant contends that he had good service which included a two combat tours. The applicant's service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered. The applicant is to be commended for his accomplishments. The Army Discharge Review Board is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the applicant's performance and conduct during the period of service under review, is considered during Board proceedings. The Board reviews each discharge on a case-by-case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member's overall character The third party statements provided with the application speak highly of the applicant's performance and they all recognize his good conduct. However, the persons providing the character reference statements were not in a position to fully understand or appreciate the expectations of the applicant's chain of command. As such, none of these statements provide any evidence sufficiently compelling to overcome the presumption of government regularity. Based on the available record, the discharge was consistent with the procedural and substantive requirements of the regulation, was within the discretion of the separation authority and that the applicant was provided full administrative due process. 9. DOCUMENTS / TESTIMONY PRESENTED DURING PERSONAL APPEARANCE: In addition to the evidence in the record, the Board carefully considered the additional document(s) and testimony presented by the applicant at the personal appearance hearing. a. The applicant submitted the following additional document(s): None. b. The applicant presented the following additional contention(s): None. c. Witness(es) / Observer(s): None. 10. BOARD DETERMINATION: In a personal appearance hearing conducted at Arlington, VA on 23 April 2018, and by a 5-0 vote, the Board determined that the characterization of service was too harsh based on the applicant's length and quality of service, to include combat service, post- service accomplishments, combat valor, combat wounded, a prior period of honorable service and the circumstances surrounding the discharge (i.e. in-service and post-service diagnoses of OBH and PTSD), and as a result it is inequitable. Accordingly, the Board voted to grant relief in the form of an upgrade to the characterization of service to general under honorable conditions. The Board determined the narrative reason, SPD code and RE code were proper and equitable and voted not to change them. 11. BOARD ACTION DIRECTED: a. Issue a New DD-214: Yes b. Change Characterization to: General Under Honorable Conditions c. Change Reason to: No Change d. Change Authority to: No Change e. Change SPD / RE Code to: No Change Authenticating Official: Legend: AWOL - Absent Without Leave GD - General Discharge NCO - Noncommissioned Officer SCM - Summary Court Martial BCD - Bad Conduct Discharge HS - High School NIF - Not in File SPCM - Special Court Martial BH - Behavioral Health HD - Honorable Discharge NOS - Not Otherwise Specified SPD - Separation Program Designator CG - Company Grade Article 15 IADT - Initial Active Duty Training OAD - Ordered to Active Duty TBI - Traumatic Brain Injury CID - Criminal Investigation Division MP - Military Police OMPF - Official Military Personnel File UNC - Uncharacterized Discharge ELS - Entry Level Status MST - Military Sexual Trauma PTSD - Post-Traumatic Stress Disorder UOTHC - Under Other Than Honorable Conditions FG - Field Grade Article 15 NA - Not applicable RE - Reentry VA - Veterans Affairs ARMY DISCHARGE REVIEW BOARD CASE REPORT AND DIRECTIVE AR20170005190 1